EXHIBIT 10.23
AMENDMENT NO. 1 and CONSENT thereto dated as of February 6,
1998 (this "Amendment") to the COLLATERAL AGREEMENT dated as of
August 7, 1997 (the "Collateral Agreement"), among FCTR, INC., a
Delaware corporation ("Xxxxx"), RCTR, INC., a Delaware
corporation ("Leasco"), CITIBANK, N.A., as liquidity agent (the
"Liquidity Agent") for the banks party to the Liquidity Agreement
(the "Liquidity Lenders") and as depositary (the "Depositary")
under the Depositary Agreement, acting on its own behalf and on
behalf of the Holders of Commercial Paper Notes, CITICORP USA,
INC., as collateral agent (the "Collateral Agent") for itself and
for the Liquidity Lenders, the Liquidity Agent and the Depositary
on behalf of the Holders of the Commercial Paper Notes, CITICORP
SECURITIES, INC. and XXXXXX BROTHERS INC. (Citicorp Securities,
Inc. and Xxxxxx Brothers Inc., together with any other dealers
for Commercial Paper Notes engaged by Xxxxx from time to time
that agree to become parties to the Collateral Agreement, the
"Dealers").
WHEREAS Leasco, as lessor, and Ryder TRS, Inc. ("TRS"), as lessee,
entered into that certain amended and restated lease dated as of August 7, 1997
(the "Lease") pursuant to which Leasco leases to TRS certain Vehicles for use in
TRS's truck rental operations;
WHEREAS, contemporaneously with the execution and delivery of the
Lease, Leasco entered into that certain loan agreement dated as of August 7,
1997 (as it may be amended or modified from time to time, the "Loan Agreement")
by and between Leasco, as borrower, and Xxxxx, as lender, pursuant to which
Xxxxx makes Loans to Leasco for the purpose of, among other things, purchasing
and financing Vehicles;
WHEREAS, contemporaneously with the execution and delivery of the
Lease and the Loan Agreement, Xxxxx entered into that certain liquidity
agreement dated as of August 7, 1997 (as it may be amended or modified from time
to time, the "Liquidity Agreement") with the Liquidity Agent and the Liquidity
Lenders, providing for, among other things, the Liquidity Commitments of the
Liquidity Lenders to make Liquidity Advances on behalf of Xxxxx from time to
time;
WHEREAS, contemporaneously with the execution and delivery of the
Lease, the Loan Agreement and the Liquidity Agreement, Xxxxx entered into that
certain depositary
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agreement dated as of August 7, 1997 (as it may be amended or modified from time
to time, the "Depositary Agreement") with the Depositary, providing for the
issuance of certain promissory notes (the "Commercial Paper Notes"), assigned a
rating of "Prime-1" by Xxxxx'x Investors Service Inc. ("Moody's") and a rating
of "A-1" by Standard & Poor's, a division of The XxXxxx-Xxxx Companies ("S&P"),
and sold in the commercial paper market by the Dealers;
WHEREAS Xxxxx and Leasco desire to amend Section 3.03(h) of the
Collateral Agreement as set forth in this Amendment; and
WHEREAS the Collateral Agent, the Liquidity Agent and the Depositary
desire to consent to such amendment, as required by Section 8.01(a) of the
Collateral Agreement, and the Majority Banks desire to consent to such
amendment, as required by Section 8.01(a) of the Collateral Agreement and
Section 8.02(j) of the Liquidity Agreement.
NOW THEREFORE, in consideration of the foregoing premises and the
agreements, provisions and covenants set forth herein, the parties hereto hereby
agree, subject to the terms and conditions set forth below, as follows:
SECTION 1. Defined Terms. Unless the context requires a different
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meaning, capitalized terms used herein but not defined herein shall have the
respective meanings assigned to such terms in the Lease, the Loan Agreement, the
Liquidity Agreement, the Depositary Agreement or the Collateral Agreement, as
appropriate.
SECTION 2. Amendment of the Collateral Agreement. Section 3.03(h) of
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the Collateral Agreement is hereby amended to extend the operative deadline from
February 9, 1998 to August 10, 1998, such that Section 3.03(h) is hereby amended
and restated to read in its entirety as follows:
"(h) Each of Xxxxx and Leasco (i) will use its respective best
efforts to appoint a Custodian prior to August 10, 1998 and execute the
Custody Agreement, together with such Custodian and TRS prior to such date,
(ii) agree that if at any time prior to August 10, 1998, the Enhancement
Test Percentage (as calculated using a Required Enhancement Percentage of
25.00%, notwithstanding the definition in Annex A to the Liquidity
Agreement) is not equal to or greater than 25.00%, the Agent shall, in its
sole discretion and at the expense of Xxxxx, appoint a Custodian and Xxxxx,
Leasco, TRS, the Agent and such Custodian shall
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execute the Custody Agreement as soon as practicable under the
circumstances and (iii) agree that during the period from the date hereof
until the earlier of (A) August 10, 1998 and (B) the date of the execution
of the Custody Agreement, Leasco shall continue to use Old Ryder as its
agent to perform certain maintenance and administrative functions with
respect to the Certificates of Title in accordance with the business
practices and subject to the controls currently observed under such
cooperative arrangement."
SECTION 3. Consent. (a) Each of the Collateral Agent, the Liquidity
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Agent and the Depositary consents to the foregoing amendment, as required by
Section 8.01(a) of the Collateral Agreement.
(b) The Majority Banks consent to the foregoing amendment, as
required by Section 8.01(a) of the Collateral Agreement and Section 8.02(j) of
the Liquidity Agreement.
SECTION 4. Headings. Section headings used herein are for
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convenience of reference only, are not part of this Amendment and are not to
effect the construction of, or to be taken into consideration in interpreting,
this Amendment.
SECTION 5. Governing Law. This Amendment shall be construed in
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accordance with the laws of the State of New York without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 6. Effectiveness of this Amendment. This Amendment shall
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become effective as of the date first above written upon the satisfaction of the
following conditions:
(a) this Amendment shall have been executed by each of the parties
hereto other than the Liquidity Lenders;
(b) this Amendment shall have been executed by Liquidity Lenders
holding, in the aggregate, Liquidity Commitments equaling or exceeding 66 2/3%
of the Aggregate Liquidity Commitment; and
(c) S&P and Moody's shall have confirmed in writing that their
respective ratings on the Commercial Paper Notes will not be lowered or
withdrawn as a result of this Amendment.
SECTION 7. Counterparts. (a) This Amendment may be executed in
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separate counterparts, each of which when so
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executed and delivered shall constitute an original, to become effective as
provided in Section 6 hereof.
(b) Delivery of an executed counterpart of this Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Amendment.
SECTION 8. Full Force and Effect. Except as expressly amended
----------------------
hereby, the Collateral Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
FCTR, INC.,
by /s/ Xxxxxx X. Xxxxxxx
_________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
RCTR, INC.,
by /s/ Xxxxxx X. Xxxxxxx
_________________________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
CITIBANK, N.A., as Liquidity
Agent and Depositary,
by /s/ Xxxxx Xxxxx
_________________________
Name: Xxxxx Xxxxx
Title: Assistant Vice President
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CITICORP USA, INC., as
Collateral Agent,
by /s/ Shapleigh X. Xxxxx
-------------------------
Name: Shapleigh X. Xxxxx
Title: Vice President
CITICORP SECURITIES, INC.,
as Dealer,
by /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President
XXXXXX BROTHERS INC.,
as Dealer,
by /s/ Xxxx Xxxxxx
-------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
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LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- -----------------------------
$41,000,000 CITIBANK, N.A.
by /s/ Shapleigh X. Xxxxx
-------------------------
Name:
Title:
$38,000,000 BHF-BANK AKTIENGESELLSCHAFT
by /s/ Xxx Xxxxxxxxxxx
------------------------
Name: Xxx Xxxxxxxxxxx
Title: Assistant Vice President
by /s/ Xxxxxx Xxxxx
------------------------
Name: Xxxxxx Xxxxx
Title: AT
$38,000,000 THE CHASE MANHATTAN BANK
by /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
$38,000,000 CORESTATES BANK, N.A.
by /s/ Xxxxxxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
$38,000,000 CREDIT AGRICOLE INDOSUEZ
by /s/ Xxxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: First Vice President
by /s/ Xxxxx Xxxxx, F.V.P.
--------------------------
Name: Xxxxx Xxxxx, F.V.P.
Title: Head of Corporate
Banking, Chicago
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LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- -----------------------------
$38,000,000 FLEET NATIONAL BANK
by /s/ Xxxxx X. Xxxx
--------------------------
Name: Xxxxx X. Xxxx
Title: SVP
$38,000,000 NATIONSBANK
by /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
$38,000,000 COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., Rabobank Nederland,
New York Branch
by
--------------------------
Name:
Title:
$38,000,000 SOCIETE GENERALE
by /s/ Xxxxxxx X. Leunj
--------------------------
Name: Xxxxxxx X. Leunj
Title: Vice President
$21,000,000 THE BANK OF NOVA SCOTIA
by /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: Relationship Manager
$21,000,000 THE BANK OF TOKYO-
MITSUBISHI, LTD., New York
Branch
by
--------------------------
Name:
Title:
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LIQUIDITY COMMITMENT LIQUIDITY LENDER
-------------------- -----------------------------
$21,000,000 XXXXXXX BANK, N.A.
by /s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
$21,000,000 COMERICA BANK
by
-----------------------------
Name:
Title:
$21,000,000 PNC BANK, N.A.
by /s/ Xxxxxx X. Zigtoscher
-----------------------------
Name: Xxxxxx X. Zigtoscher
Title: VP
